The Cartoon Networks case holds that the cable companies' online storage for its customers did not invoke the reproduction right in the Copyright Act since the files were "transitory", having been buffered for only 1.2 seconds.

The Government's brief argued, among other things, that the peculiar procedural posture of the case militated against Supreme Court review, since the plaintiffs had waived their contributory liability line of attack, and the defendant had waived its fair use defense.

[Ed. note. As I pointed out in footnote 18 of my "Journal of Internet Law" article, the content cartel's "usual suspects", including the same Jenner & Block attorneys who now occupy some of the highest positions in the Justice Department, were representing the film companies in the Cartoon Networks case. So the filing of this brief shows that there is more than one voice being heard. Which is good. -R.B.]

Friday, May 29, 2009

In SONY BMG Music Entertainment v. Cloud, a Philadelphia case, the Court deferred ruling on the constitutionality question, under the doctrine of "constitutional avoidance", and denied the defendant's motion to dismiss the complaint.

Thursday, May 28, 2009

The order states that the schedule is contingent upon: (1) the plaintiffs' motion to dismiss counterclaims being granted, thus eliminating the need for additional discovery, and (2) denial, or deferral until after trial, of the defendant's constitutional challenge until after trial.

The order fixes the close of discovery as May 30th (this coming Saturday) and leaves June 5th at 2:30 PM as the scheduled date and time for the argument of the various non-discovery motions.

[Ed. note. It is unclear to me how the May 30th discovery date interrelates with (a) the hard drive inspection, and (b) the discovery that would be needed into plaintiffs' revenues and expenses, to ascertain their actual damages in connection with the constitutional challenge. -R.B.]

The Electronic Frontier Foundation is planning a campaign of its own to counter a misleading propaganda campaign launched by the RIAA to spread its false views of copyright law to school children. The EFF program is named "Teach Copyright Right".

The appellant's brief filed yesterday in the United States Court of Appeals for the Second Circuit in Arista Records v. Does 1-16, a case targeting 16 students at the State University of New York in Albany, attacks the RIAA litigation process.

The brief starts out:

This is one of an estimated 30,000 cases brought since 2003 in federal district courts around the nation by members of the Recording Industry Association of America (“RIAA”), alleging copyright infringement by the downloading and filesharing of recorded music over the internet. Although the cases are always brought in the names of record company plaintiffs who allege that they are the owners or proprietors of the copyrights involved, it is undisputed that the RIAA is the real party in interest, and that it controls and determines the course and strategy of the litigation, and references to the RIAA herein should be understood in this light.

This flood of litigation has been brought supposedly to stem the detrimental effect on sales of compact disks caused by the availability of recorded music on the internet, although the extent of that effect has been vigorously disputed by disinterested scholars, see infra at 7 n. 3. This appeal appears to raise issues of first impression in the Second Circuit arising from this campaign.

The RIAA’s theory in these cases is that anyone who downloads song files from the internet and makes them available to anyone by way of so-called peer-to-peer software (which enables users to exchange files directly between their computers without intermediate servers) has violated both the copyright owner’s right to make copies, contained in 17 U.S.C. § 106(1), and the distribution right of § 106(3). Its position, moreover, is that the distribution right is violated whether or not any copies have actually been distributed, and that merely making song files available to others is an infringement of that right.

However, the right to make a personal copy of copyrighted material may be protected as fair use, 17 U.S.C. § 107; Sony Corp. of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984). Moreover, as will be shown, infringement of the distribution right requires the actual distribution of copies, and merely making copies available without more does not violate the distribution right. In other words, the attempted distribution of copyrighted material–which is all that plaintiffs-appellees allege–is not infringement and is not actionable.

This nationwide litigation campaign has been seriously detrimental to the fair administration of justice and the public policy importance of establishing clear boundaries to copyright law, and has imposed enormous burdens on the federal courts. The RIAA has used questionable investigations, unsupported and erroneous legal theories, ex parte applications and communications with court personnel, violations of the rules against joinder of unrelated defendants, and abusive litigation tactics against individuals, many of whom are completely innocent, and none of whom should reasonably expect to find themselves forced to defend their personal use of computers in federal courts.

District Judges and commentators have often criticized the RIAA’s tactics and the legal theories behind them , but the litigation continues, with seemingly little effect on the public’s unflagging desire and intention to download music from the internet.

And it argues, among other things, that

-there is a qualified First Amendment privilege of anonymity;-the plaintiff has an obligation to put in a prima facie case;-the RIAA's complaint fails to meet pleading standards;-the RIAA's technology and methodology are too flawed and unreliable to be relied upon by the courts;-the RIAA's inability to identify proper defendants is not a basis for the courts to bend the rules to assist the RIAA; and-the defendant should be awarded a reasonable attorneys fee.

The RIAA's subpoena, and all lower court proceedings, have been stayed during the pendency of the appeal.

The RIAA's responsive brief is due June 25th; appellant's reply brief is due July 6th; argument will be August 10th or later.

In Capitol Records v. Thomas, the Court entered orders indicating that there are pretrial motions scheduled for June 10th, the trial continues to be scheduled to begin June 15th, and the caption is amended to reflect Ms. Thomas's new married name, Jammie Thomas-Rasset.

The scheduling order provides that the defendant herself is required to appear at the June 10th hearing. There is no similar provision requiring the plaintiffs to appear at that hearing.

Wednesday, May 20, 2009

The Court also issued an amended Trial Notice, which retains the June 15th trial date.

The withdrawing attorneys issued the following press release:

A few hours ago Chief United States Court District Judge granted Brian Toder’s motion to withdraw as defendant’s counsel and to substitute in his stead K.A.D. Camara of Camara & Sibley of Houston, Texas with local counsel Garrett Blanchfield of Reinhardt, Wendorf & Blanchfield of St. Paul, Minnesota. The trial date of June 15th in Duluth, Minnesota remains unchanged.

I have met with my partners and am pleased to announce that our firm will never seek any additional payment from Jammie Thomas for the considerable work we have done in her case. If we are to receive any funds from this case, it will be solely from plaintiffs if Ms. Thomas-Rasset ultimately becomes the prevailing party which we believe is highly possible given the caliber of the counsel and amici on her side.

I would like to thank Ray Beckerman, personally, for the help he gave us in acquiring local counsel, the help he has and continues to give others, but mainly for his tireless and noble efforts championing the cause against the destructive course of action taken by the RIAA.

Finally, I hope we are remembered not for withdrawing, but for the considerable time and expense we provided before we could no longer afford to stay in Jammie’s fight. Her interests are now well served, and we wish her well.

the Examining Expert shall be required to disclose both the methods employed to inspect the hard drive and any instruction or guidance received from the Plaintiffs.

To date, in the hundreds of consolidated RIAA cases assigned to her, Judge Gertner has rendered thousands of rulings based upon so-called evidence procured by MediaSentry, without ever asking for that same type of disclosure.

In fact, the RIAA and MediaSentry have steadfastly maintained that their methods are secret and "proprietary". While they are permitted to have whatever "proprietary" "secrets" they want, it is contrary to Federal law to maintain a federal litigation based upon such material.

Although it is routine in federal litigation to mandate such disclosure for any scientific or computer-based evidence, it is novel in RIAA litigation, since the courts have generally bent the rules for the RIAA, in view of the weak or nonexistent legal representation of defendants.

Let us hope that that era is coming to an end, and that the RIAA will have to prove its cases just like any other plaintiff in a federal litigation has to prove its case.

And let us hope that Judge Gertner will apply the same standards to the "evidence" submitted to her from MediaSentry, Doug Jacobson, and any other RIAA "expert".

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove